Wednesday, January 26, 2011

Witch Doctor Lawmaker Wants To Lop Off the Balls of Sex Offenders

When it comes to men who are charged with or convicted of sex offenses, no "science" is too other-worldly, too primitive, too bizarre, or too inhumane to try on them. Things more appropriate to a witch doctor's practice than a serious physician's are employed with seeming relish and without so much as a murmer from the general public. It’s for that reason that penile plethysmograph testing, a sort a junk science polygraph of penises, and masturbation satiation sessions, where teens and men are forced to masturbate to "cure" their deviancy, are standard techniques to both treat male sex offenders and to decide whether they should be released from custody. We also know that untold numbers of innocent men were convicted of sexually abusing their young daughters years after the alleged crimes on the basis of their adult daughter's supposed recovered memories, another discredited wacko theory.

But here's one to top all the others. A Virginia lawmaker is floating the most barbaric idea possible for treating his state's convicted sex offenders: physical castration -- the "surgical" removal of the testicles.

Republican State Sen. Emmett Hanger has introduced a bill that would have state agencies study whether Virginia should start castrating sex offenders instead of confining them to treatment programs after they get out of jail. In 2007, then-Gov. Timothy Kaine vetoed a similar bill.

Hanger's critics call the idea barbaric, because that's what it is, but Hanger said it would save the state money and could provide a "cure." See here.

Virginia wouldn't be alone in the testicle mutilation business. While eight other states allow for some form of castration for sex offenders, according to the National Conference of State Legislatures, only Louisiana and Texas (of course!) allow for physical castration. In contrast, chemical castration through medications merely reduce testosterone, which fuels a man's sex drive. See here.

It does not appear that a court has definitively decided whether the obviously cruel and unusual punishment of surgical castration runs afoul of the Eighth Amendment's ban on cruel and unusual punishments.

Mary Devoy, founder of Reform Sex Offender Laws of Virginia, called Hanger's proposal "a great bill with one shocking flaw." Can you guess? "When abuse and mutilation of a human being is presented as an acceptable alternative to responsible treatment and housing for those deemed as sexually violent predators there exists a fault of reason." See here.

Exactly, Ms. Devoy.

We see another fundamental problem with Sen. Hanger's bill that should permanently relegate it to the wastepaper bin: In all of Senator Hanger's pronouncements about "cures" and about saving the state money, has he given even a passing thought to the possibility that after he allows a man's balls to be cut off, it might turn out that the man was actually innocent?

The girl might recant; alibi witnesses might come forward; exculpatory evidence might surface. And then what do we do?

Glue them back on?

Mutter "Sorry about that!"?

Somehow, I doubt that "I'm sorry" will cut it.

Does it sound far-fetched that a man convicted of a sex offense might just turn out to be innocent? Then you haven't been reading this blog for long, have you? And you've obviously never heard of the Innocence Project. Such cases are not uncommon.

While innumerable people have pondered in good faith the possible ways to cure and to control sex offenders, when a proposal comes along with a "solution" this cruel, this permanent, it smacks less of "cure" than of sadistic punishment.

It is ironic that Sen. Hanger's Web site touts his Christian background: "I try to guide my decisions based on biblical instruction including the 10 commandments and I believe strongly that our form of representative democracy cannot survive, at least in a manner that is efficient and affordable, unless the majority of our citizens are 'Godly' people and are willing and capable of assuming their role as responsible citizens in a free society." See here. Unfortunately, Sen. Hanger seems to have skipped over the teachings of the most famous wrongly convicted man in history. Somehow, I can't imagine Christ calling for a sex offender's testicles to be cut off.

In Patrick Kennedy v. Louisiana, 2008 U.S. LEXIS 5262 (June 25, 2008), the U.S. Supreme Court ruled that the death penalty is unconstitional for cases of child rape. Among other things, the court recognized that "the problem of unreliable, induced, and even imagined child testimony" might just send an innocent man to his death. The Court explained: "Studies conclude that children are highly susceptible to suggestive questioning techniques like repetition, guided imagery, and selective reinforcement. . . . . See Ceci & Friedman, The Suggestibility of Children: Scientific Research and Legal Implications, 86 Cornell L. Rev. 33, 47 (2000) (there is "strong evidence that children, especially young children, are suggestible to a significant degree--even on abuse-related questions"); Gross, Jacoby, Matheson, Montgomery, & Patil, Exonerations in the United States 1989 Through 2003, 95 J. Crim. L. & C. 523, 539 (2005) (discussing allegations of abuse at the Little Rascals Day Care Center); see also Quas, Davis, Goodman, & Myers, Repeated Questions, Deception, and Children's True and False Reports of Body Touch, 12 Child Maltreatment 60, 61-66 (2007) (finding that 4- to 7-year-olds "were able to maintain [a] lie about body touch fairly effectively when asked repeated, direct questions during a mock forensic interview").

"Similar criticisms pertain to other cases involving child witnesses; but child rape cases present heightened concerns because the central narrative and account of the crime often comes from the child herself. She and the accused are, in most instances, the only ones present when the crime was committed. See Pennsylvania v. Ritchie, 480 U.S. 39, 60, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987). Cf. Goodman, Testifying in Criminal Court, at 118."

Lopping off a man's balls isn't in the same class as sentencing him to death, but it isn't as far removed as proponents of this heartless, spiteful bill probably think. If the man was wrongly convicted, Sen. Hanger's awful, permanent "cure" can't be undone.

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I leave you with a story, related by the late Michael Musmanno, the flamboyant and brilliant Pennsylvania Supreme Court Justice. In his dissenting opinion in Washington Park, Inc. Appeal, 425 Pa. 349 (1967), Justice Musmanno related the following, about one of the most famous injustices ever perpetrated by American courts:

"Nicola Sacco and Bartolomeo Vanzetti, two workingmen in Massachusetts, were sentenced to death after a trial admittedly saturated with error. As one of the attorneys in the case I filed a petition for certiorari in the Supreme Court of the United States. The date of execution was set for August 22, 1927. The Supreme Court was not to meet until the following October. A stay of execution was imperative if the Supreme Court was to pass on living litigation. I applied to the Chief Justice and two Associate Justices of the Supreme Court, all of whom refused to grant the stay. I made application to the Governor of Massachusetts, he refused the stay. I turned to the President of the United States because by this time the Sacco-Vanzetti case had taken on international significance and the heads of many governments had indicated they feared a great injustice would result if the two doomed workingmen went to the electric chair with half of the world believing them innocent. The President declined to intervene.

"On August 22, 1927, the men, who were undoubtedly innocent, were executed. Two months later the Supreme Court met and one of the first items of its business was consideration of the pending petition for writ of certiorari, the one I had filed. The Court was formally advised that the petition was now moot because Sacco and Vanzetti were dead."